Natural Resource Defense Council, Inc. v. Berklund, s. 78-1757
| Citation | 197 U.S.App.D.C. 298,609 F.2d 553 |
| Decision Date | 23 January 1980 |
| Docket Number | 78-1787 and 78-1842,Nos. 78-1757,s. 78-1757 |
| Parties | , 197 U.S.App.D.C. 298, 9 Envtl. L. Rep. 20,761 NATURAL RESOURCES DEFENSE COUNCIL, INC., Environmental Defense Fund, Inc., Appellants, Cross-Appellants, v. Curtis J. BERKLUND, in his official capacity as Director of Bureau of Land Management of the Department of Interior, et al., Appellees. Appeal of CHACO ENERGY COMPANY, Cross-Appellees. NATURAL RESOURCES DEFENSE COUNCIL, INC.; Environmental Defense Fund, Inc., Appellants, v. Curtis J. BERKLUND, in his official capacity as Director of Bureau of Land Management of the Department of Interior, et al., Appellees (two cases). |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Roger Beers, New York City, with whom Bruce J. Terris, Eleanor M. Granger and George W. Pring, Washington D. C., were on the brief, for appellants in No. 78-1787, cross-appellees in Nos. 78-1757 and 78-1842.
Gerry Levenberg, Washington, D. C., with whom Verl R. Topham, Salt Lake City, Utah, was on the brief, for appellants in No. 78-1842.
Edward H. Forgotson and Christopher R. O'Neill, Washington, D. C., were on the brief for appellants in No. 78-1757 and cross-appellees in Nos. 78-1787 and 78-1842.
John J. Zimmerman, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., and Robert L. Klarquist, Atty., Dept. of Justice, Washington, D. C., were on the brief, for Federal appellees.
Also, Jacques B. Gelin and Robert L. Klarquist, Attys., Dept. of Justice, Washington, D. C., entered an appearance, for Federal appellees.
Before BAZELON, McGOWAN and ROBB, Circuit Judges.
Opinion PER CURIAM.
The Natural Resources Defense Council (NRDC) and the Environmental Defense Fund (EDF) brought this suit for a declaratory judgment empowering (the Secretary of Interior (the Secretary) to reject coal mining lease applications on environmental grounds, even when an applicant has otherwise fulfilled the requirements for a lease under Section 2(b) of the Mineral Leasing Act of 1920 ("the Act"). 1 Two power companies, Utah Power and Light Co. (Utah Power) and Chaco Energy Co. (Chaco), intervened to support the Department's position that the Secretary obtains no such discretion either under the Act or the National Environmental Policy Act (NEPA). 2 The district court agreed, 3 and on examination of the statutory framework and the effect of NEPA, we affirm.
Prior to 1920, federal lands containing coal and other mineral deposits were sold to private owners and states in accord with the general policy to dispose of land in the public domain. As protection of energy sources and of the environment became pressing public issues during this century, Congress and the Department of Interior (the Department) developed an increasing commitment to deliberate management of coal reserves in federally-owned lands.
In the Mineral Leasing Act of 1920, under which this case arises in part, Congress established a program to lease mineral deposits for private mining and marketing while preserving federal ownership of the mineral lands. 4
Until the past decade, the Department routinely granted applications for prospecting permits where the existence of coal deposits was not yet known. 5 A prospecting permittee could then apply for the so-called "preference right lease" which would be granted automatically upon a demonstration that the land contained commercial quantities of coal. 6 The United States Geological Survey would advise the department that commercial quantities existed if the applicant found coal that could be physically extracted at a profit. 7 Thus, environmental considerations were absent from the decision to grant a prospecting permit and the decision to grant a lease to a permittee.
The Department introduced environmental considerations in its regulations of January 18, 1969. Accordingly, prospecting permits would be granted only after examination of the environmental effects; permittees would be granted leases only after environmental scrutiny and would be allowed to mine only after approval of a mining plan. 8 Although the Department stopped issuing permits for coal exploration in 1973, 9 the requirements continue to apply to lease applications by holders of outstanding prospecting permits. 10
In addition, outstanding applications are now subject to regulations passed in 1976 that redefine the statutory term, "commercial quantities," and in other ways alter the procedures for obtaining leases. The new regulations require permittees applying for leases to establish through detailed procedures the profitability of the proposed mining while accounting for the costs of complying with environmental requirements. 11 Where the applicant supports his claim with a reasonable factual basis responsive to the agency's recommended reclamation requirements, 12 the lease shall be granted. 13
We find no reason to reject the district court's conclusion that the Secretary has no discretion to reject a coal lease application by a prospecting permittee who has otherwise fulfilled the requirements of § 201(b).
The only condition that the permittee must meet to obtain a lease is to establish the presence of "commercial quantities" of coal. 14 The Act provides that a permittee meeting this condition "shall be entitled to a lease under this chapter for all or part of the land in his permit." 15 This language is unequivocal and clear, and compels our conclusion that the applicant who satisfies the condition is entitled to a lease. 16
Petitioners argue that the Secretary's general discretion under § 201(a) extends to lease applications under § 201(b). We approve of the district court's reasoning that the § 201(b) prospecting permit, and resulting lease application, constitute a separate, statutory program, not one of the "other methods" within the Secretary's discretion for issuing leases under § 201(a). 17
Finally, petitioners claim that the Secretary's discretion can be inferred from the term "preference right lease," assigned in the legislative history to leases under § 201(b). The meaning of the term is, in fact, ambiguous. Not used in the statute, nor defined in the House Report, the term has, however, been construed by the agency consistently for nearly 60 years to mean an automatic entitlement of a prospecting permittee who establishes the presence of commercial quantities of coal in the area covered by the permit. 18 This interpretation has not been disturbed by Congress or the courts, and it influences our conclusion here. 19
The Department's regulations since 1969 have required it to scrutinize environmental effects in evaluating permit and lease applications, in stipulating lease terms, and in approving mining plans. 20 These regulations considerably assist the Secretary's protection of public lands even though he cannot reject an entitled lease applicant out of hand. Thus, the definition of "commercial quantities" of coal itself accommodates the cost of protecting the environment, as do lease terms and mining plans under the Department's supervision. We are satisfied therefore, that the Department and the district court assured only narrow limits on the Secretary's authority to protect public lands are imposed by § 201(b).
Petitioners claim that NEPA gives the Secretary authority to reject lease applications by prospecting permittees. This claim relies on Section 102(1) of NEPA which directs that
to the fullest extent possible, . . . the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Chapter. 21
The courts have concluded that the limit of this directive is reached when the NEPA policies conflict with an existing statutory scheme. E. g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 548, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 788, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976). Certainly, an agency cannot escape the requirements of NEPA by excessively constricting its statutory interpretation in order to erect a conflict with NEPA policies. 22 But that is not the situation here, where the plain meaning of the statute as well as undisturbed administrative practice for nearly 60 years leaves the Secretary no discretion to deny a § 201(b) lease to a qualified applicant.
We find that the Department in fact abided by NEPA's requirements "to the fullest extent possible" by introducing environmental analysis at crucial points in the leasing process, pending total revision of the leasing program. The agency requires a demonstration that the estimated revenues can reasonably be expected to exceed estimated costs. 43 C.F.R. § 3520.1-1(c) (1978). Those costs can include the costs of complying with lease terms demanding complete reclamation and safeguards against environmental harm. See 43 C.F.R. §§ 3521.1-1(c)(2)(vi), 3521.1-4, 3521.1-5 (1978). Even after a lease is granted the awardee may be precluded from harming the environment if the agency disapproves his mining plan. 23 Petitioners claim that these measures fall short of NEPA's policies because they do not account for "societal costs" of environmental harm. 24 We find, to the contrary, that these costs can be figured into the assessment of commercial quantities, covered in stringent lease provisions, or adopted as criteria for measuring proposed mining plans. If the Secretary fails to exercise his authority through such measures, then a challenge under NEPA may be appropriate. In the meantime, not even the policies of NEPA, which are of the utmost importance to the survival of our environment, can rewrite § 201(b) to undermine the property rights of prospecting permittee lease applicants. Congress evidently understood this, as it...
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